Wassoodew, J.:— The question raised by this appeal from a decree of the First Glass Subordinate Judge of Dharwar, relates principally to the validity of the adoption of the plaintiff and also his right as an adopted son to claim a share in certain properties acquired by a sole surviving coparcener in the adoptive father's family prior to his adoption. The relevant facts for the purpose of this appeal can be shortly stated. One Basangouda and his two sons Huchangouda and Ayyangouda, defendant 1 in the case, were members of an undivided Hindu family. Basangouda's two sons survived him, and the elder Huchangouda died first in 1910 leaving a widow Dyamavva. The sole surviving coparcener Ayyangouda was in possession of the entire estate and he entered into an agreement in 1915 with Dyamavva, the widow of his deceased brother, in regard to her maintenance. Under that agreement, which was incorporated in a registered document on 26th August, 1915, certain lands and a house were allowed to Dyamavva for her maintenance and were handed over into her possession. Five years later, on 5th July, 1920, one of the properties was returned by the widow in exchange for another. Since then, till 17th December, 1923, the widow remained in possession of the property. For some reasons she then thought of returning the property to Ayyangouda in lieu of a cash allowance payable to her annually for her maintenance. That was the subject of a third agreement executed in 1923. About that time it appears that Ayyangouda had got two sons, who are defendants 2 and 3, and another son was born to him subsequently. On 26th June, 1933, Dyamavva took the plaintiff in adoption according to the custom of the community, and she executed a registered deed of adoption on that date. The fact that the plaintiff was adopted in proper form has not been seriously disputed in this appeal. The Court below on the evidence tendered was in my opinion right in concluding, that the adoption was formally made.
2. In this suit by the adopted son, instituted on 25th June, 1935, to claim a share in the ancestral property in the hands of the defendants, who are Ayyangouda and his sons, it was contended on behalf of the latter that the widow had relinquished her rights in a portion of the family property and also her right to adopt to her deceased husband, and that therefore the adopted son's right to a share in the estate was not merely curtailed but absolutely lost. It was also contended that two of the properties acquired prior to the adoption, first on 14th February, 1921, which was a house at Alur for Rs. 8000, and the second on 5th September, 1928, which was a field bearing Survey No. 7-A at Alur and purchased for Rs. 1500, were the self-acquired and separate properties of the acquirer and not part of the ancestral properties and were not subject to division. Both these contentions were disallowed in the Court below, and a preliminary decree for partition upon a declaration of the plaintiff's status was passed in his favour, and he was given mesne profits from the date of the suit and also past mesne profits in the amount of Rs. 200. Bach party was ordered to bear his own costs except the costs in relation to the part of the past mesne profits which were rejected. Against that decree the defendants have appealed.
3. The learned advocate for the appellants has challenged the validity of the adoption on the ground that the effect of the deeds of maintenance referred to was the relinquishment of the widow's right to adopt. It has also been contended that even if the right subsisted in the widow, the adopted son could not claim any interest in the face of those deeds in the property of the family of the adoptive father. In considering the effect of these documents, the learned trial Judge was of the view, and I think rightly, that they do no more than recite the agreement in regard to the manner in which provision for the maintenance of the widow should be made. The first agreement is specific in its nature, and the widow, after reciting the description of the properties handed over into her possession, gives expression in the following words to what she had agreed upon:
These four lands I will independently rent them, and I will maintain myself from the yearly income of these properties. Thus I will enjoy the properties during my lifetime. After my death you as owners should take possession of these properties.
4. There is no reference to her right to adopt a son to her husband in that document (Ex. 13). The next document (Ex. 14) is a mere exchange of one property for another and like the first it is significantly silent as to the alleged term in the agreement to relinquish her right to adopt. The third document (Ex. 15), after reciting the properties agreed to be surrendered to the husband's coparcener or brother and mentioning the cash amount that was agreed to be received by the widow from him in lieu of the surrendered properties, proceeds in para. 4 to narrate the object of the fresh agreement. She says “I am a woman and on account of famine, etc., it is not possible for me to rent the lands and recover the same.” There again there is no reference to any contemplated adoption. Nothing, could be more fantastic than the suggestion that these three documents constitute a relinquishment of the widow's right to adopt or bear that interpretation.
5. It is common ground that Dyamavva's husband Huchangouda and his brother Ayyangouda at the time of the former's death formed a coparcenary and upon the death of Huchangouda, his widow Dyamavva, upon the authority of 60 IA 251 was competent to adopt to her husband. So then it is clear that if the widow's power had not been lost in any other way known to Hindu law, the adopted son would be entitled to the share he claims. It is urged that by claiming maintenance in cash and surrendering the properties allotted for that purpose the widow was impliedly agreeing either that she would give up her right to adopt or that the adopted son's right should be restricted in relation to his claim to the family property. The former argument involves a very strange doctrine. An adoption besides being a sanskar involves a religious duty and ceremony. The incident of that adoption may involve divesting of the estate vested in a family member. But so far as the religious conception underlying the practice of adoption goes, in the view I take, the law would not countenance an agreement which expressly aims at surrendering the spiritual duty of the widow. An adopted son, upon the religious theory, if he performs the duty of a pious Hindu, is supposed to confer spiritual benefit particularly on his father in the direct line, and that being the main object of adoption, and the secular incident being merely secondary, I should think that it would be opposed to the underlying principle and against the radical view and spirit of the Hindu law or rather the religious conception underlying an adoption, to accept as valid an agreement of the nature suggested. Moreover, an agreement such as the one urged in this case would be illegal, for, there is no consideration suggested for it. Upon the evidence however, there is hardly any material to found an argument of renunciation of such a right. The widow has denied it and the other evidence does not support the defence. Moreover, more substantial proof of the alleged agreement was necessary to curtail the right of an adopted son in the property of his adoptive father. That could only be done under certain circumstances as pointed out by the various decisions such as 40 Bom 6682 and 56 Bom 3953. Their Lordships of the Privy Council in 54 IA 2484 referred to the custom sanctioning agreements curtailing the rights of the adopted son, and said that having regard to a consensus of judicial decisions, an arrangement made on the adoption of a minor whereby the widow of the adoptive father is to enjoy his property during her lifetime, or for a less period, that arrangement being consented to by the natural father before the adoption, is to be regarded as valid by custom. Any other agreement would not be effectual: see 8 Bom LR 3465, 16 Bom LR 576, and 37 Bom 2517. There is no suggestion that the agreement in this case is of an analogous nature nor is there any evidence of any custom led. Therefore, in my opinion, the adopted son would be entitled to a share in the joint ancestral property in the hands of the defendants.
6. The next question which is not free from difficulty is in regard to the character of the disputed properties, which the defendants on the one hand claim as their separate properties, and the plaintiff on the other as ancestral properties. It is important to note that the joint family possessed considerable other properties, the extent of which can be measured by the number of the fields in its possession. The exact area of each field is not given, but we are told that more than thirty-one fields were in the possession of the family. Out of these in 1920 defendant 1 Ayyangouda, who was then the sole surviving coparcener in the family, sold one for a sum of Rs. 3000. It is the plaintiff's case that amount was utilized by Ayyangouda for the purchase of the two properties in dispute. Having regard to the position of the sole surviving coparcener in relation to the properties of the joint family to which he has succeeded, it can safely be asserted that the sale by Ayyangouda was within his competence. He was then the sole owner and could dispose of the entire property as he liked, and the subsequently adopted son of his deceased brother could not question the validity of that disposition. As I had occasion to remark in 41 Bom LR 2688 that is because the rights of an adopted son do not relate back to a period earlier than the date of the adoption. See also, 41 Bom LR 2239. If Ayyangouda therefore had appropriated the proceeds of the sale for his private purposes he would not be made accountable to the plaintiff. If the latter's allegations were true that the proceeds were utilized in purchasing other properties, the question is whether such acquisition would partake of the character of ancestral property in Ayyangouda's hands in determining the claim of a subsequently adopted son to a share therein. That is a mixed question of fact and law. While the plaintiff has alleged—and in my opinion having regard to the sole ownership of Ayyangouda the burden must rest on the former to prove the character of the fresh acquisitions of Ayyangouda—that the purchase price paid for these properties could be identified with the proceeds of the sale of the ancestral properties, the defendant has contended to the contrary, and has asserted that the proceeds were utilized by him for other purposes and that out of the profits of the commission agency shop which was carried on from 1920 to 1929 he acquired these properties. He has further stated that he invested Rs. 3000 in or about 1920 as his capital in that business after borrowing that amount from other sawkars or creditors and that there is no connexion between that capital and the amount which he got by sale of the ancestral property. The learned trial Judge has drawn an inference from the defendant's statement and his omission to disclose the accounts of his business and estate that the defence version could not be relied upon, and he has concluded that the business was started with the proceeds of the sale of the family property. Even so, the question will be whether the property acquired from the profits of such business could be regarded as part of the joint ancestral property.
7. The question of onus becomes academic in view of the fact that both sides have led the evidence available, and the point is whether the plaintiff has been able, in order to sustain his claim, to establish that the proceeds realized by the sale of the family property were utilized for starting the business. Now on that point there is a curious synchronization of three important circumstances: first, upon the admission of the defendant the business out of the profits of which the disputed properties were purchased was started in 1920; secondly, the sale of the ancestral property took place in that very year, that is 1920; and lastly, upon the defendant's own showing the only capital which was brought into that business was exactly equal to the sum of Rupees 3000 obtained by the sale of the ancestral property. It would therefore be a legitimate inference upon those facts, in the absence of any proof in rebuttal or explanation of the admissions, that the sale was very probably effected with a view to provide capital for the business. As I have already remarked, the lands in the possession of Ayyangouda were not inconsiderable and so also their income. There was comparatively very small provision made for the maintenance of the widow of his brother, and Ayyangouda had no other independent income of his own from which savings could be effected for the purpose. Moreover, there is a singular omission to prove the accounts of the firm and the accounts of the family to refute the claim to the disputed property. It was certainly within the power of the defendant to do that, and the learned Judge, if he was satisfied upon the admissions of the defendants that the primary onus was discharged, was justified in drawing the inference against them.
8. In my opinion the facts that emerge from the evidence are that in 1920 Ayyangouda sold one of his fields for Rs. 3000, that he soon invested that sum in a profitable business, and that he utilized the profits made in that business for the purchase of the fields in dispute. If profits were made from business started with the proceeds of the sale of ancestral property, the investment made from these profits would in my opinion form part of the ancestral coparcenary property. Ordinarily, if such investments were made by the father or manager as head of the family, they would partake of the character of ancestral property, for the investor was clearly accountable to the other coparceners: see, 10 Bom 52810. Mayne in his “Hindu Law and Usage”, 10th edn., para. 277, p. 355, has cited various authorities on the point, and has dealt with the principle of accretion to the acquisition of property out of savings of ancestral property by a manager. I do not think the position of the sole surviving coparcener, who has invested the ancestral funds in a fresh business started by him, should be different merely because he was the sole owner of the entire property at the time of the investment. I think the principle of accretion could properly be applied to the profits made from investment of the ancestral funds by the sole surviving coparcener prior to the adoption. There is nothing in the texts or the authorities cited to suggest that the adopted son's right to a share must be restricted to the ancestral property which could be followed in specie. I think it is logical to regard the accretions to the ancestral fund as partaking of the same character as the corpus. If therefore the profits of the business started by Ayyangouda were invested in the manner proved, the acquisition by reason of such investment would be liable to division between the adopted son and the acquirer. I would therefore confirm the decree of the lower Court and dismiss the appeal with costs.
9. Indarnarayen, J.:— I agree. I will only add that a sole surviving coparcener has undoubtedly the right to alienate the family property to third parties without being accountable, but it does not follow therefrom that if he only converts part of the family property into a different kind of property or cash and keeps it in his own hands, such new property—the result of conversion—loses its character of joint family property.
10. On a similar basis, to my mind, must be considered accretions to such converted property. The identity of the amount of the sale proceeds and the investment in the business of the defendant and other circumstances disclosed by the evidence in this case leave no doubt, in my mind, as to the correctness of the decision arrived at in the lower Court. The appeal will therefore be dismissed with costs.
D.S/R.K
11. Appeal dismissed.